EVENTS

Oral arguments in the Greece case

Lyle Denniston gives a good summary of the oral arguments presented today at the US Supreme Court in the Greece prayer case. (You read the transcript of the proceedings here.) The upshot seemed to be that the judges were skeptical of the reasoning in the precedent-setting 1983 Marsh v. Chambers case that historical practice could be used to justify ceremonial prayers at government meetings. That reasoning had led to some confusion in interpretation by the lower courts, which may be why the US Supreme Court took up this case, hoping to arrive at a clearer ruling.

But the thorny issue was how to keep ceremonial prayer at official functions while at the same time avoiding them becoming sectarian or having to pre-screen them, which would be a form of government sanctioning that would clearly be going over the line.

The easiest and most logical outcome would be to ban prayers altogether. But I get the feeling that people are unwilling to take that step. Even Douglas Laycock, the lawyer for the couple who brought the lawsuit, said that he was not arguing against all prayers but only those that were sectarian. When challenged by judge Alito as to what kind of prayer might be acceptable to all faiths, he suggested that appeals to a generic ‘Almighty’ or the ‘Creator’ might work but justice Scalia (!) said that those might offend “devil worshippers” or atheists. In fact, in the transcripts, justice Scalia was the one posing awkward questions to the lawyer for the city about what would be the equivalent of prayer for somebody who is not religious while Laycock said that it might be that atheists and polytheists and devil worshippers could not be treated equally. Unfortunately, he seemed to be willing to exclude them from consideration of any resolution to the problem.

Interestingly justice Alito finally said that “I just don’t see how it is possible to compose anything that you could call a prayer that is acceptable to all of these groups” to which Laycock replied “We cannot treat everybody, literally everybody equally without eliminating prayer altogether.” To which I say, “Amen!”

But I doubt that they will ban all prayer, logical as it is. Justice Kagan seemed to be worried about the public uproar that such a move might create. But it may be hard for the justices to get a majority on how to replace the Marsh precedent reasoning with something else and they may resort to finding a way to punt.

Comments

The easiest and most logical outcome would be to ban prayers altogether. But I get the feeling that people are unwilling to take that step. Even Douglas Laycock, the lawyer for the couple who brought the lawsuit, said that he was not arguing against all prayers but only those that were sectarian.

I don’t understand this. Banning the prayers the only consistent outcome. As you discussed in your earlier post, the First Amendment has been understood, rightly, to apply not just to individual sects but to religion as a whole. And this is a situation in which people have to be present in order to participate in the democratic process. It’s not about who would be offended by “nonsectarian” prayers, but that even nonsectarian prayers promote religion and exclude the nonreligious – at town meetings. It would be funny if the others pounced on Scalia’s (I imagine sneering) comment about devil-worshippers and atheists to draw the correct conclusion, which would be the opposite of what he wants. One can dream… (Could they do that? Could they rule that prayers aren’t allowed even if that’s not what the plaintiffs in the case are seeking?)

Justice Scalia finally suggested what he thought “is missing here,” and that was an appreciation that, when local government officials attend their business meetings, they do so as citizens, take their beliefs with them, and their religious practices, and that includes their habit of “invoking the Deity” just as they do at home before eating meals.

Justice Scalia finally suggested what he thought “is missing here,” and that was an appreciation that, when local government officials attend their business meetings, they do so as citizens, take their beliefs with them, and their religious practices, and that includes their habit of “invoking the Deity” just as they do at home before eating meals.

The fact that they’re acting as government officials means that they can’t “take their…religious practices with them.” Scalia’s doing a good job of making the case for banning the prayers entirely.

If Justice Anthony M. Kennedy was serious that history might not be enough to justify prayers to open government meetings, the Supreme Court will have to set off on a deeply challenging search for a different way to judge such religious utterances. But if Justice Elena Kagan is right that, whatever the Court might do, it could make the cultural problem worse, then history may in the end turn out to be the only test to apply.

Of course history and tradition aren’t enough to justify them. Where such traditions exist, they’ve been in violation of the First Amendment. History isn’t remotely sufficient to override religious freedom, and never has been. So we can go back to the first instance of these practices and ask, “What was the justification?” And there’s none. So there’s no more justification after a hundred or a thousand instances. Something doesn’t become Constitutional because you do it X number of times. It’s irrelevant.

What is Scalia up to here? I can’t believe he actually has a problem with even Sectarian prayer

He’s trying to undermine the argument. He takes it as granted that they aren’t going to ban all prayers (because the founding fathers would never have done so!). This makes the distinction fuzzier so he can open it up to non-sectarian prayers.

Acccck. There are many things people do in the privacy of their own home–floss their teeth, trim their ear hair, hang around on the couch in their underwear eating potato chips right out of the bag–that are simply not appropriate in a public forum such as a town meeting.

Near the end, Justice Kagan tried to sum up: Isn’t the question here, she said, whether public meeting prayers with references to Jesus Christ “will be allowed in a public town session like this one?” When Laycock agreed that that was the issue, Kagan said it was a hard one, “because the Court lays down these rules and everybody thinks that the Court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways….And every time the Court gets involved in things like this, it seems to make the problem worse rather than better.”

Oh, good grief.

Prayers in these settings are plainly in violation of basic human rights: both religious and related to participation in public life. The solution to the problem is to recognize this and decide accordingly by banning the prayers. It’s not true that every decision makes the problem worse – only those that cater to pressure from people who oppose human rights make the problem worse. Because the problem isn’t offenses against religious privilege but the denial of human rights.

Why not a private prayer meeting half an hour before the official meeting? There, problem solved. Anyone who feels the need to pray can do so in privacy. Or, is it that prayers are less effective when not held in public?

[Scalia]’s trying to undermine the argument. He takes it as granted that they aren’t going to ban all prayers (because the founding fathers would never have done so!). This makes the distinction fuzzier so he can open it up to non-sectarian prayers.

Yes, that’s how I read it, too.

As the OP points out, plaintiffs aren’t arguing for no prayers. (Which is unfortunate. I hope there were at least some amicus briefs arguing that position.) They’re arguing this sectarian vs. non-sectarian distinction, because that’s how the Court of Appeal ruled, which presumably did so because of the prior Supreme Court precedent.

And Scalia is rightly, in my opinion, skewering that as a very dubious distinction that essentially nobody is happy with and that is difficult to justify constitutionally. It “tosses out” the atheists and some polytheists, so you’ve got a basic fairness problem right off the bat. And even when you exclude those folks, you’ve still got the difficulty of determining what is sectarian and what isn’t, which means every city council has to carefully review the words of every proposed prayer and make sure that nobody would be offended by it (other than the atheists and other folks who don’t count)….

Basically, there are two intellectually consistent, easy-to-administer possibilities here: (1) no official prayers at government meetings; or (2) whatever prayers the governing body wants to allow are fine.

Scalia knows that nobody is even arguing for (1), so he’s got a pretty easy time pushing (2).

Plaintiffs’ counsel and the more liberal justices aren’t comfortable with (2) and know that, while it may be consistent and easy to enforce, it’s not a fair rule. But that leaves them arguing for some vague standard that seems more fair (but isn’t fair to atheists, of course) but that has no real solid foundation.